Obscure aviation climate deal could undermine the Paris Agreement

BONN 14 November 2017. A new Columbia Law School report reveals major shortcomings in how the UN aviation body (ICAO) interprets transparency and public participation requirements. The report’s findings come amidst a closed meeting in Montreal that kick-starts the approval of rules for ICAO’s new carbon offsetting scheme. A separate Carbon Market Watch analysis on the scheme’s impact on the Paris Agreement calls for an urgent overhaul of the ICAO decision making process in line with countries’ obligations and international common practice.

This week, the 36 member countries of the UN’s international aviation agency (ICAO) Council meet for closed talks in Montreal to discuss rules on its carbon offsetting scheme -known as CORSIA. Established in October 2016, the new carbon market is intended to compensate for the industry’s emissions growth above 2020 levels.

A new Carbon Market Watch analysis warns that a careful design of the rules is necessary to avoid undermining the goals of the Paris Agreement. This brief comes off the back of a new Columbia Law School report showing that unless the governance structure and transparency of ICAO’s decision making process are significantly improved to allow public scrutiny, the aviation scheme risks poor quality and illegitimacy.

Eva Filzmoser, Executive Director at Carbon Market Watch said:

“A lack of public scrutiny has allowed ICAO to develop climate policy in isolation. The aviation offsetting scheme has serious and direct implications for the Paris Agreement, and if outstanding issues are to be resolved before CORSIA goes online, this clandestine practice must end.”

The aviation scheme will have a direct impact on countries’ compliance with the Paris climate targets. While climate talks currently underway in Bonn discuss accounting rules for emission reduction transfers between countries, it is unclear how emission reductions purchased by airline operators are booked to avoid double counting of reductions towards ICAO and the Paris goals.

Obligations under the Aarhus Convention and common transparency practices

While in principle, the ICAO general rules of procedure promote public participation, the Carbon Market Watch analysis finds that these rules have so far been interpreted in a thoroughly narrow fashion by keeping the outcome of political meetings and important documents relating to the development of the CORSIA locked away from the public domain.

The Aarhus Convention obliges its signatories to grant the public rights of access to information, participation in decision making process and access to justice on environmental issues. The secret decision making under which the rules for CORSIA are developed conflicts with signatories’ obligations to share information on the negotiations. ICAO’s practice is also in stark contrast with many other UN policy fora, such as the maritime body (IMO) or climate body (UNFCCC), that generally provide engagement opportunities to the public.

Aoife O’Leary, author of the study said:

“The ICAO rules of procedure allow for access to information and public meetings but inexplicably these rules have not been followed in the decision making process around the sector’s offsetting scheme. And this despite the obligations the Aarhus Convention places on many of the ICAO member and observer countries, meaning the signatories have so far been complicit in keeping the development of the CORSIA in the dark, away from public scrutiny.”

Parliamentarians in Italy and Sweden [1] have already asked their governments for more information on the CORSIA. At the EU level, a number of Members of the European Parliament [2] have asked the European Commission to release documentation as the CORSIA will impact on the EU’s climate targets for 2030.

Seb Dance, Member of the European Parliament (S&D) said:

“The carbon reduction scheme put forward by the International Civil Aviation Organisation in principle deserves our full support, yet serious questions remain over its governance and its effectiveness. The European Parliament has consistently called for full transparency of information and public deliberations on the carbon reduction scheme to allow all actors involved to judge its effectiveness.”

As the ICAO Council concludes their meeting to agree on draft rules for the new scheme, Carbon Market Watch calls upon those ICAO Parties that are also Party to the Aarhus Convention to adhere to their transparency obligations and disclose all details of the CORSIA negotiations to provide opportunity for public debate ahead of their adoption in June 2018.

Kelsey Perlman, Aviation Policy Officer at Carbon Market Watch said:

“Aviation’s measure risks blowing a giant hole in the Paris Agreement. The irony is that delegates in Bonn and Montreal are currently negotiating interlinked climate issues, with one held in public and the other behind closed doors. ICAO needs to allow for more public scrutiny, but the truth is we can’t afford to keep waiting to see how this measure affects global climate ambition. The European countries that have defended transparency this week in Bonn while sitting in the dark in ICAO, need to open up the debate.”

Article 6 discussions on the role of carbon markets in implementing the Paris Agreement have been open at COP23, with references by the EU and others to CORSIA and “transfers outside of NDCs” (for example to aviation)

Since the decision on the CORSIA in October 2016, rules on registries, monitoring of emissions and offset quality, albeit having political implications, have been developed in technical groups, which are not public.

ICAO normally produces Standards and Recommended Practices (SARPs) that bind states and airlines – think of security standards for airplane doors. Yet, many rules for the carbon offsetting scheme, such as offset quality requirements, are produced only as “guidance material”[3], because they also concern actors outside of ICAO.

The legal status of the CORSIA rules being only developed in the form of guidance material, as it is not a SARP, is therefore unclear, notably over whether and how they will be enforceable.

If the SARP and guidance material are approved, at a minimum the SARP will be sent to ICAO parties in what is known as a “state letter process”. They will have until spring of next year (April/March is the timeline given) to ‘file a difference’ (outline areas that they are not in agreement with and will not enforce) before final approval in June of next year.

States will have to translate final rules into national law

Airlines need to have some CORSIA elements in place by next year: All airlines need to submit fuel monitoring plans to their states before the end of 2018 to start monitoring in 2019.[4]

Resources:Columbia Law School / Sabin Centerworking paper: Transparency And ICAO’s Offsetting Scheme: Two Separate Concepts?Carbon Market WatchPolicy Briefing: Visibility Unlimited: Transparency of the new aviation carbon marketOh no, ICAO!Climate Action Network International press release on the day the International Civil Aviation Organisation (ICAO) received the Fossil of the Day award at COP23